(January 1999)


By Steven B. Bashaw

McBride Baker & Coles

10th Floor - One MidAmerica Plaza

Oakbrook Terrace, Illinois  60171-4710

Tel.: (630) 954-7588

Fax.: (630) 954-7590

e-mail:  SBashaw @MBC.COM

(Copyright 1998 - All Rights Reserved)



Each of the “Flashpoint” Authors write the postings you receive for the next month in the closing days of the preceding month, (even electronic publication has it’s “deadlines”!). And so, these January notes are being written and published at the end of December 1998 -- which, of course, causes us all to be “reflective” of the year past.


Our editor, (i.e., the person who calls and reminds us of our deadlines, and then calls again, and then threatens, and then calls again....), Jim Kropid, requested we offer as our ‘reflection’ at year’s end “ONE short, single entry concerning what is the key ‘story’ in our field for the year 1998.  It could be a case, statute, trend, person, firm, idea, cause, etc.”.


Makes you sort wanna go hmmmmmmmm....... but.....


I think the “key” to this year in real estate is that we saw an emergence of the  “wheel in the wheel” in real estate transactions and litigation issues and a new, dizzying level of complexity:


It wasn’t enough to be concerned with real estate broker’s commissions, NOW we have to be concerned with “business brokers”, (see Thomas v. Daubs, 5th Dist, 1997, 684 N.E.2d 1011, 815 ILCS 307/10),  AND the fact that a notice of a business broker’s line is filed not with the Office of the Recorder of Deeds, but with the Securities Department of the Secretary of State;


It wasn’t enough to know the provisions of the Illinois Mortgage Foreclosure Law about confirmation of sales found in 735 ILCS 5/15-1508, NOW we have to consider the impact of a “sale in error”,  (Citicorp Savings v. First Chicago Trust, (1st Dist. 1995) 645 N.E.2d 1038 and Fleet Mortgage v. Deale, (1st Dist. 1997) 678 N.E.2d 35), the potential “unjust result”, (Commercial Credit v. Espinosa, (1st Dist. 689 N.E.2d 282), AND that it may be that a bankruptcy can be filed as late as the period between the sale and confirmation of the sale, (but even Judges in the same District can’t agree about that one!), (FNMA v. McEwen, (N.D. Il. 1996), 194 B.R. 564, In Re: Christian, (N.D. Il. 1997) 199 B.R. 382, In Re: Christian, (N.D. Il. 1997) 214 B.R. 352, Crawford v. First Nationwide, (N.D. Il. 1998) 217 B.R. 558), AND surplus proceeds of sale must go to the mortgagor rather than to payoff outstanding prior mortgage liens, (Members Equity Credit Union v. Duefel, (3rd Dist. 1998) 692 N.E.2d 865), ALTHOUGH a mortgagor CAN extinguish a lien on property by bidding at the foreclosure sale, regardless of his knowledge of the claims and avowed intent to use the foreclosure to “launder” the title, (BCGS LLC v. Jaster, (2nd Dist.  Sept. 8, 1998), 1998 Ill.App.LEXIS 628);


It wasn’t enough to pay attention in real estate transactions to the dates upon which modifications and notice under the various contingency provisions had to be given, NOW care must be taken to consider if a modification reverts a “contract” back to the offer/acceptance mode, and whether a disapproval is clear and unambiguously stated in order to be effective, (Hubble v. O'Connor, (1st Dist. 1997) 684 N.E.2d 816);


It wasn’t enough to master the concept and ‘magic words’ required  of Tenancy by the Entirety, NOW the interplay between debtors and creditors brought into view by a potential “fraudulent conveyance” and the amendments focusing on those technical aspects of conveyance have to be pondered,  (In Re Marriage of Del Guidice, (1st Dist. 1997) 678 N.E.2d 47 and Harris Bank v. Weber, (2nd Dist. Sept. 8, 1998) 1998 Ill.App.LEXIS 601.);


It wasn’t enough to simply comply with the Illinois Residential Real Estate Disclosure Act, NOW its is becoming clear that the Broker’s duty to disclose continues to the closing, (Letsos v. Century-21, (1st Dist. 1996) 675 N.E.2d 217, the warrantees made in the contract relating to HVAC systems are NOT merged into the deed at closing but survive, (Lanterman v. Edwards, (5th Dist. 1998) 689 N.E.2d 1221), and that the Seller must be alleged to have actual knowledge of a defect at the time of making a representation under the Residential Real Property Disclosure Act to state a cause of action under 765 ILCS 77/20, (Hirsch v. Feuer, (1st Dist. Oct. 16, 1998) 1998 Ill.App.LEXIS 715).


There are, of course, many more examples to call upon, but it seems clear that the “wheel in the wheel” is well enough depicted in this year’s real estate law developments to recall the oft cited quote from Herman Hesse’s STEPPENWOLF:   “ABANDON HOPE, ALL YE WHO ENTER HERE”. ......and to all ye gentlemen and gentlewomen,  read well into the night and rest up for the what the New Year may have to offer:  more spokes on the wheel, to be sure.